Defendant, having purchased a hoist from plaintiff, refused to pay for it on the ground that after it was received and put into operation it was found to be in a materially defective condition and unfit for use. In this action to recover the purchase price the trial judge, sitting without a jury, found for defendant; exceptions were dismissed by the court en banc and from the judgment entered in favor of defendant plaintiff appeals.

Defendant had a contract with the City of Philadelphia for the construction of a portion of an interceptor sewer, for which purpose it required the use of a hoist. Plaintiff's salesman exhibited to defendant's manager a manufacturer's catalogue which contained the picture and advertisement of an "O.K. Hoist, Model Crown, No. FDD120B, 125 H.P. 6 cylinder, 18 inch diameter hoisting drum, 1500 line pull, with three drums and swinger attachment complete, including 125 h.p. Hercules gasoline engine." Defendant's manager signed a written order for the purchase from plaintiff of such a machine, referring to it in those same terms. The hoist was manufactured by the O.K. Clutch and Machinery Company by whom it was sold to plaintiff, a dealer, and by the latter in turn to defendant. It was

[ 370 Pa. Page 462]

to be delivered around the middle of October, 1948, but, notwithstanding defendant's urgent need for it on the job, it was not in fact delivered until the 17th of the following November. When it was unloaded by defendant, set upon foundations and a test made of its operation, the front swinger gears immediately disintegrated and the lever shaft become twisted so that it could not be operated. Upon being notified of this fact, the manufacturer replaced the gears, but, upon further testing, the machine again failed to work, this time because the clutch started to heat up after the hoist had been in operation for but a few hours. The manufacturer continued its efforts to repair the machine but the clutch heated so badly and was slipping to such a degree that the brakes would not hold and it was not safe to operate a boom; moreover brass started to come from the bushings in the drums. Notwithstanding attempts by the manufacturer to correct these conditions defendant still found that it could operate the hoist for only short periods each day; subsequently the machine broke down entirely due to the burning out of the clutch. All these facts were found by the trial judge upon competent testimony, and, notwithstanding repeated complaints by defendant, no adequate repairs and replacements were made. The court found -- and its findings are binding upon us -- that the "machine was inoperative because the clutch became burned out, the brakes were riding against the surface of the drum (metal against metal), the brakes were not centered properly over the drum so that only a portion of the braking surface was effective, the brass rivets were pulled out by the blow holes and pittings in the face of a bad casting being the braking surface of the drum, and the front drum never at any time would work because it was not hung properly and friction could not be applied." While the manufacturer was willing to make some of the obviously necessary repairs it refused,

[ 370 Pa. Page 463]

according to the finding of the court, "to replace the drums themselves where the braking surface was pitted and had blow holes in the castings causing excessive wear on the brake bands, and refused to square the brake itself which caused the brass rivets to be torn out when the drum rubbed against the frame." The hoist being materially defective and wholly unfit for use, and all the attempts to put it into condition having proved futile, defendant gave written notice to plaintiff on December 28 that it rescinded the sale and that plaintiff should take the hoist back, and, since it could not carry on its excavating job -- on which it had many men employed -- without a hoist, it purchased one from another concern. Some time thereafter plaintiff, acting under an agreement of counsel that it might do so without prejudice, removed its hoist from the job, and it then brought the present action against defendant to recover the agreed-upon purchase price.

The contentions of plaintiff may be reduced to three asserted propositions: (1) that the sale of the hoist did not carry with it an implied warranty of merchantable quality; (2) that even if such a warranty might otherwise have arisen it was here negatived by the fact that the manufacturer's catalogue shown to defendant provided that all O.K. hoists were guaranteed against defective material and workmanship for the period of one year and all parts found defective would be replaced free of charge; plaintiff claims that defendant relied ...

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